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Click here for the full text of this decision FACTS:James Ferron Troxel and Valerie Bishop became close friends when Bishop was assigned to monitor Troxel’s rehabilitation from heart surgery in the late 1990s. Troxel considered Bishop to be his “surrogate daughter,” and wanted to help her out during her divorce in 1998. Troxel told his friend and employer, Alan Greenberg, that he had bought a house in Garland to give to Bishop. He asked Greenberg to “hold” title to the house for him while Bishop’s divorce was pending. Troxel paid the purchase price, but the warranty deed transferred the house to Greenberg in January 1998 and was recorded the next month. Because her divorce was still pending, Bishop did not move into the house for another two years, though she thought of the house as hers (she had picked out the house and her name original appeared on the purchase contract) and also considered it to be a gift from Troxel. Troxel paid property taxes on the property, but both he and Bishop paid the house expenses. Bishop’s divorce became final in May 2000, at which time she moved into the house. Troxel told her he was preparing a deed to transfer the house to her. Troxel asked Greenberg to execute the deed with the grantee’s name left blank; Troxel would transfer the house to Bishop and Troxel’s attorney “will take care of the rest.” Greenberg did as asked, and also prepared another deed at Troxel’s request listing Bishop as the grantee. Greenberg executed this deed on May 25, 2000, and though he did not deliver the deed to Bishop, he did record it with instructions for it to be returned to Bishop after filing. Listed on the deed as consideration for the transfer was the amount of $10 “and other good and valuable consideration.” Bishop paid the $10 but nothing else. Nonetheless, Greenberg said he felt as if title to the property had been transferred to Bishop. He did not feel as if he had made a gift to Bishop because the property was not really his to give; it was Troxel’s. Troxel died in 2001. His son, James Randall Troxel, filed suit against Bishop. In his first petition, he alleged that Troxel never intended to give the house to Bishop as a gift; that he only put the house in Bishop’s name to help her with some back-taxes she owed. James also alleged Troxel was trying to keep existence of the property from his wife’s knowledge. James asked the trial court to impose a constructive trust on the property with Troxel’s estate as the property’s owner and constructive beneficiary. He also asked that Bishop be required to deed the property back to the estate. In an amended petition, James alleged that Greenberg was only an agent for Troxel and never owned the property. Without written authority to sell the property to Bishop, Greenberg’s attempted transfer was void. In her summary judgment motion, Bishop asserted three basic grounds: 1. She had record title to the property and Troxel never did, so the estate did not have standing or capacity to seek transfer of the property to it; 2. The Statute of Frauds and the “Dead Man’s Rule” precluded James’ claims; and 3. Even if the facts James alleged were true, Texas does not recognize a cause of action through which James could be granted the relief he sought. James filed a second amended petition where he dropped the allegations about the back-taxes and Troxel’s desire to hide the property from his wife. Instead, he now argued that the Statute of Frauds prohibited Greenberg’s transfer of the property to Bishop, since it was based on Troxel’s alleged oral authorization. The trial court granted Bishop’s motion for summary judgment, awarding her more than $9,000 in attorneys’ fees. HOLDING:Affirmed. On appeal, James argues that the property transaction did not meet the requirements of an oral gift of real property. The court takes note of the requirements of a constructive trust, noting that the Statute of Frauds does not bar imposition of such a trust: “(1) breach of a special trust, fiduciary relationship, or actual fraud; (2) unjust enrichment of the wrongdoer; and (3) tracing to an identifiable res.” Resulting trusts are similar to constructive trusts, the court adds, but they arise by operation of law when title is conveyed to one person but another person pays the purchase price or a portion of the purchase price. The court finds that once James dropped his allegations about back-taxes and Troxel’s desire to hide the property from his wife, there were no longer any facts alleged that could be construed as asserting the breach of a special trust, fiduciary relationship or actual fraud. Nor were there any allegations of a wrongdoer’s unjust enrichment. Consequently, the elements of a constructive trust were absent. Assuming that James asked, instead, for the imposition of a resulting (purchase money) trust, the elements there have not been met, either. After the property’s original owner transferred the property to Greenberg, after Troxel paid the purchase price, Greenberg held legal title subject to Troxel’s purchase money resulting trust. Greenberg then transferred the property to Bishop at Troxel’s direction. “Further, the trial court could infer from the summary judgment evidence that Troxel ratified Greenberg’s action in signing the deed, either by giving the deed to Bishop for recording or by having the deed recorded and instructing the county clerk to return the recorded deed to Bishop. As a result, no reason existed for the continued imposition of an equitable trust in favor of the Troxel as the source of the purchase money for the house.” The court notes the three elements necessary to find an oral gift: 1. a gift the donor intends to be immediately effective; 2. possession under the gift by the donee with the donor’s consent; and 3. permanent and valuable improvements made on the property by the donee with the donor’s knowledge or consent. Contrary to James’ contention, there was not an oral gift in this case: Bishop’s claim to the property is based on the execution, delivery and acceptance of a deed. Assuming that there was an oral gift, however, the evidence proved that, too, as Troxel intended an immediate transfer of rights to Bishop in May 2000; Bishop moved into the house that same month; and Bishop and Troxel both paid expenses for the house for more than two years prior to Bishop’s moving in. James also argues that if Bishop can prove an oral gift, Greenberg still lacked written authority to act as Troxel’s agent in transferring the house, but the court points out that because Greenberg owned legal title to the property, he was not Troxel’s agent. Neither the Statute of Frauds nor the conveyance statute, Property Code �5.021, applies. Furthermore, The alleged source of the oral gift to Bishop was Troxel, not Greenberg. OPINION:Jim Moseley, J.; Wright, Moseley and Lang, J.J.

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